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Trial lawyers have a saying, "When the law isn't on your side, argue the facts." That's what The New York Times did in early October when it made its case—through five lengthy articles and a capstone editorial—for curbing the rights of religious organizations. Its examples of religious freedom run amok were all perfectly legal, but morally questionable.

One of the newspaper's examples: A Roman Catholic order in Toledo dismissed Mary Rosati after finding she'd been diagnosed with breast cancer. Rosati claimed the order wanted to avoid the expense of caring for her. The religious order countered that it found Rosati unqualified for its way of life. Since questions of theology and spiritual calling were invoked, a district judge in Ohio dismissed Rosati's complaint.

The Times's not-so-subtle editorial-page conclusion: "The wall between church and state is being replaced by a platform that raises religious organizations to a higher legal plane than their secular counterparts." In other words, religion is taking over, while "the majority [of Americans] is not aware."

But Times editors misunderstand the basic notions embedded in the First Amendment. "Congress shall make no law respecting an establishment of religion," our foremost right reads, "or prohibiting the free exercise thereof." The first clause forbids elevating one religious group over another. The second allows such groups free rein over their own affairs.

Congregations receive tax exemptions, not because of the public service they offer—social workers, inner-city teachers, and employees at secular nonprofits all benefit the common good while still paying taxes—but mainly because the power to tax is the power to manipulate, control, or even destroy. It's not hard to imagine hostile officials using taxation to delimit religious practice or even to force churches out of town. In fact, imagination is unnecessary. Consider the resolution passed earlier this year by Bay Area supervisors, denouncing a gathering of evangelical teens as "obnoxious" and "disgusting." What would the supervisors have done had civil law been on their side?

Furthermore, a church or religious group that can't regulate its hiring, at least on the basis of religion, gender, and sexual preference—three identifiers specifically mentioned by the Times—might well lose its essential character. It should be legally acceptable for the Roman Catholic Church to ban women from the priesthood, whether or not the general public approves.

That's not to say that groups haven't abused the unique protections afforded them. Churches, mosques, synagogues, and all charitable organizations should be accountable to independent directors, ecclesial and (when appropriate) civil courts, and the public. Faith-based wrongdoing should be granted no safe harbor.

In this respect, the practices of some churches and ministries deserve reexamination. Increasingly, churches and nonprofits are offering services that compete with for-profit businesses: retirement homes, fitness centers, theme parks, and child care, to name a few examples. In such cases, Christian nonprofits should make sure that the services they provide relate to their theology and mission—otherwise they'll be rightly perceived as exploiting tax law for their own benefit. That's dishonest, and it tarnishes the name of Christ. For all the breadth of interpretation the First Amendment allows, it wasn't intended to give First Church Fitness Center a leg up on Bally's.

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December 2006, Vol. 50, No. 12